CHAPTER 92.

TITLE XXI. intention to remove the case to the circuit court, and shall, within the same time, make, or cause to be made, an affidavit, setting forth the substance of the testimony, and the proceedings in the county court, and the grounds upon which an allegation of error is founded.

Affidavit to be presented to judge or commissioner-when

writ to be allowed.

Bond to be given on obtaining cer tiorari.

Affidavit to be

SEC. 47. Such affidavit shall, within thirty days after the rendition of the judgment, be presented to the circuit judge or circuit court commissioner of the proper county, and if he shall be satisfied that an error affecting the merits of the controversy has been committed by the court or jury, in the proceedings, he shall allow the certiorari by endorsing his allowance thereon.

SEC. 48. The party thus obtaining a certiorari, shall execute to the opposite party a bond with one or more sufficient sureties, to be approved by the circuit judge or circuit court commissioner, in a penalty double the amount of the judgment, for debt, damages and costs, conditioned to prosecute such certiorari to effect, and abide the judgment of the circuit court therein, and pay all debts, damages and costs that may be awarded against him, which bond need not be executed by the party procuring the certiorari, if executed by two or more sureties satisfactory to the officer allowing the certiorari.

SEC. 49. The affidavit required by this section, after the allowance filed and writ to of the certiorari, shall be filed in the office of the clerk of the said circuit court, and thereupon the said clerk shall issue a writ of certiorari, in the common form heretofore in use as near as may be.

be issued.

Service of writ,

fees, and the ef fect thereof.

SEC. 50. Such writ of certiorari shall, within thirty days after the and payment of date thereof, or within such further time as the circuit judge or officer allowing the same shall in such allowance direct, be served upon the judge by whom the judgment was rendered, together with the bond given, and a copy of the affidavit on which the certiorari was allowed, and the sum of two dollars shall be then paid to the said judge for his fees for making a return to the writ, and no writ of certiorari shall be of any effect until all the preceding requisitions shall have been fully complied with; and if the certiorari, bond and affidavit shall be served on the judge before execution issued on the judgment, it shall stay the issuing thereof; and if the execution shall have been issued, the court issuing it shall give the party a certificate of the issuing and service of the certiorari, which being served on the officer having the execution shall suspend the same.

Return to writ of certiorari.

Circuit court

SEC. 51. The county judge, before the return day of such certiorari, or within ten days after the service thereof, shall make return thereto in writing and file the same; in which return he shall truly and fully answer to all the facts set forth in the copy of the affidavit on which the certiorari was allowed, and shall cause the certiorari, bond, and copy of the affidavit, and his return thereto, to be attached together and filed in the office of the clerk of the circuit court of his county.

SEC. 52. The circuit court may compel such judge to make or may compel re- amend such return, by rule, order or attachment, as the case may require.

turn.

How argument

on.

SEC. 53. When such return shall be filed in the office of the clerk may be brought of the circuit court, the cause may be brought on to argument at the next term of the circuit court thereafter, without any assignment or joinder in error, unless there be an allegation of error in fact, and without furnishing any other copy or copies of the affidavit, certiorari and return to the court or the opposite party, than those filed with the clerk.

TITLE XXI.

CHAPTER 93.

SEC. 54. The circuit court shall then proceed to give judgment in the cause as the right of the matter may appear, without regarding technical omissions, imperfections or defects in the proceedings before Judgment and the county court, which did not affect the merits, and may affirm or cuit court. reverse the judgment, in whole or in part, and execution shall issue thereupon as upon other judgments in the circuit court.

execution in cir

ing judgment in

SEC. 55. If the judgment be affirmed, costs shall be awarded to Costs on render. [the] defendant in error, if reversed, costs shall be awarded to the circuit court. plaintiff in error; and if judgment be affirmed in part, the costs may be awarded as to the court shall seem just.

county court not

SEC. 56. No judgment in a county court shall be reversed, merely For what causes for the omission or mis-recital of an oath, nor on account of any fees judgment of having been improperly allowed by the court, nor on account of any to be reversed. informality or insufficiency of any bond given by the party bringing the certiorari, provided another bond to be approved by the court, shall be given within such time as the court shall direct.

circuit court.

SEC. 57. If a judgment in the county court be collected, and after- When restitution wards reversed, the circuit court shall award restitution of the amount to be awarded by so collected, with seven per cent. interest from the time of such collection, if the party claiming the award present to the court satisfactory evidence of the fact of such collection having been so made, at any time before judgment is rendered in the circuit court. SEC. 58. The compensation of the county judge shall be such fees Compensation of for his services as shall be provided by law, and shall be taxed as costs of suit.

county judges.

CHAPTER 93.

OF COURTS HELD BY JUSTICES OF THE PEACE.

peace.

SECTION 1. Every justice of the peace elected in any township or Jurisdiction of city of this state, and duly qualified according to law, shall have pow- justices of the er to hold a court in his township or city, and shall have original jurisdiction of all civil actions wherein the debt or damages demanded do not exceed the sum of one hundred dollars, except as is provided in the next section, and to hear, try and determine the same accord- 1841, p. 81. ing to law.

risdiction.

SEC. 2. No justice of the peace shall have cognizance of real ac- Actions of which tions, actions for libel or slander, or for malicious prosecutions, ex- justice has no jucept in the cases specially provided by law, nor when the title to real estate shall come in question.

confession.

SEC. 3. Such court shall have authority to render judgment upon Judgments upon the confession of any person, made in writing and signed by the person making the same, in the presence of the justice, when the amount shall not exceed the sum of two hundred and fifty dollars.

of justices courts.

SEC. 4. Each of said courts is hereby vested with all such powers, General powers for the purpose of exercising the jurisdiction conferred by this chapter, as are usual in courts of record, except the power of setting aside a verdict, and arresting judgment thereon.

SEC. 5. Every action commenced in such court, shall be brought Where actions before some justice of the peace of the township or city where,

to be commɛnced.

TITLE XXI.

CHAPTER 93.

Where action may be brought ing defendant.

1. The plaintiffs, or any of them reside: or,

2. Where the defendants, or any of them reside: or,

3. Before some justice of another township or city, in the same county, next adjoining the residence of the plaintiff or defendant, or one of the plaintiffs or defendants.

SEC. 6. But if a defendant shall have absconded from his residence, against abscond. Such action may be brought before a justice of the township or city in which said defendant or his property may be; and if the plaintiffs be all non-residents of the county, or if the defendant be a non-resident of the county, then such action may be brought before any justice of the township or city where such plaintiffs or defendants, or either of them may be.

Action of covenant or debt on bond, &c.

Justice not to

SEC. 7. When there shall be a bond with a penalty exceeding one hundred dollars, with condition for the payment of a sum of money not exceeding one hundred dollars, or for the payment of several sums of money by instalments, the aggregate of which instalments shall not exceed one hundred dollars, an action of covenant or debt may be maintained, on such condition, in a justices' court: and a recovery of either of such instalments shall not bar a subsequent suit for the other instalments which shall become due after the commencement of the former suit.

SEC. 8. No justice of the peace shall hold any court, or hear any hold court in bar examination in a bar-room, grocery, or other room or place where intoxicating liquors shall be sold.

room.

Cases of which justice shall not take cognizance.

Suits how instituted. Statement of plaintiffs' claim to accompany summons, &c.

Offers to be made by parties, and

SEC. 9. No justice shall take cognizance of any cause, or do any judicial act, when he shall be related within the fourth degree, according to the rule of the civil law, of affinity or consanguinity to either party in any such matter, or shall have been of counsel, or shall be directly or indirectly, interested in such cause or matter.

Of the commencement of Suits, and the Service and Return of Process. SEC. 10. Suits may be instituted before a justice, either by the voluntary appearance of the parties, or by process; and when by process, it shall be either a summons, a warrant, or an attachment, and every summons and attachment shall be accompanied by a brief statement in writing, signed by the plaintiff, his agent or attorney, under oath before the justice issuing the same, setting forth the nature of his claim, and the amount due after allowing all credits, if any, which the defendant is by law entitled to set off in the cause, and the amount of damages claimed in the process, shall be the amount for which judgment is demanded or claimed to be due in such statement.

SEC. 11. In every case before a justice of the peace, after issue is noted by justice. joined, the plaintiff shall state the amount for which he will take a judgment, and the defendant the amount for which he will confess a judgment, which offers shall be noted by the justice, and such offers shall not prejudice the parties on trial.

Recovery of

costs.

SEC. 12. If on the trial a judgment be rendred in favor of the plaintiff, equal to the sum and interest for which he shall have offered to take judgment, he shall recover full costs against the defendant; if he shall recover a sum less than his offer, but more than was offered by the defendant, he shall recover one-half of his taxable costs; and if the plaintiff shall recover any sum, but not greater than the offer of the defendant, and the interest thereon, he shall not recover any costs, but the defendant shall be entitled to his costs, to be deducted from

JABRARY

GE THE

the judgment; if he shall fail to recover any sum, or if the defendant shall obtain a judgment against the plaintiff, such defendant shall be entitled to all his costs.

TITLE XXI. CHAPTER 93.

SEC. 13. Suits shall be considered as commenced at the times fol- When suit deemlowing:

1. Upon process by warrant, at the time of the arrest of the defendant:

2. Upon process by attachment, replevin or summons, on the day when process shall be delivered to the constable. But if two or more suits be commenced, by summons or attachment, on the same day, the suit in which the process was first served, shall be deemed to have been first commenced:

3. When the suit is instituted without process, at the time when the parties shall appear before the justice and cause the same to be entered.

ed to be commenced.

SEC. 14. The first process, except as hereinafter directed, shall be Summons. a summons, directed to any constable of the county in which the justice resides, commanding him to summon the defendant to appear before the justice who issued the same, at a time and place to be named in such summons, not less than six nor more than twelve days from the date of the same, except as hereinafter provided, to answer the plaintiff in a plea in the same summons to be mentioned.

How summons

SEC. 15. A summons shall in all cases, except as hereinafter otherwise provided, be served at least six days before the time of appear- served. ance mentioned therein; and if the defendant be found, it shall be served by reading the same to such defendant, and (if required by him) delivering a copy thereof; but if the defendant shall not be found, it shall be served by leaving a copy thereof at the defendant's last place of abode, in the presence of some one of the family of suitable age and discretion, who shall be informed of its contents.

New summons

in certain cases.

SEC. 16. If it appear by the return of the constable that the summons was not personally served, and the defendant shall not appear and attachment on the return day thereof, the plaintiff may thereupon take out a new summons against the defendant in continuation of his suit, returnable not less than three, nor more than twelve days from the date thereof, which shall be served at least two days before the time of appearance mentioned therein, and if such summons be returned that the defendant cannot be found after diligent inquiry, the plaintiff may, in further continuation of his suit, have an attachment against the defendant. SEC. 17. Any plaintiff shall be entitled to an attachment against a Attachment, defendant, in any action founded on a judgment, or on a contract, express or implied, if such plaintiff, or some person in his behalf, shall make and file with the justice, an affidavit, specifying as near as may be the amount due to the plaintiff, and showing to the satisfaction of the justice, either,

1. That the defendant has assigned, disposed of or concealed, or is about to assign, dispose of or conceal, any of his property, with the intent to defraud his creditors: or,

2. That he is about to remove any of his property from the county in which such application is made, or from the county where the defendant resides, with the like intent: or,

3. That he fraudulently contracted the debt, or incurred the obligation, respecting which the suit is brought: or,

4. That the defendant has absconded to the injury of his creditors,

when to issue.

TITLE XXI.

CHAPTER 93.

When plaintiff

entitled to warrant.

1839, p. 76, § 2,

Ib.

Affidavit to show

stances.

or does not reside in this state, and has not resided therein for one month immediately preceding the time of making the application.

SEC. 18. The plaintiff shall be entitled to a warrant upon filing with the justice an affidavit, made by such plaintiff or some one in his behalf, showing to the satisfaction of said justice, either,

1. That the plaintiff has a demand against the defendant for money collected by him as a public officer: or,

2. That the plaintiff has a demand against the defendant for damages arising from the misconduct or neglect of the defendant, in any professional employment, or public office: or,

3. That the plaintiff's demand is for damages [occasioned] by a breach of promise to marry.

SEC. 19. In actions other than those founded on judgment or contract, the plaintiff shall be entitled to a warrant, if he or some person in his behalf shall make and file with the justice an affidavit, specifying the nature of the demand, and showing to the satisfaction of such justice, either,

1. That the defendant has committed a trespass or other wrong to the damage of the plaintiff: or,

2. That the defendant has incurred a penalty or forfeiture, by the violation of some law of this state, for which the person filing such affidavit has a right to prosecute in the name of the people of this state, or otherwise.

SEC. 20. In all cases, on application for a warrant or attachment, facts and circum- under the provisions of either of the preceding sections, the person applying therefor shall, by affidavit, show the facts and circumstances, within the knowledge of the person making such affidavit, constituting the grounds of the application, whereby the justice may the better judge of the necessity and propriety of issuing such warrant or

Contents of war. rant.

Warrant, how served and returned.

Justice to proceed to try cause unless there be

attachment.

SEC. 21. A warrant shall be directed to any constable of the county in which the justice issuing the same resides, and shall command such constable to take the defendant and bring him forthwith before such justice, to answer the plaintiff in a plea to be mentioned therein, and shall require him, after he shall have arrested the defendant, to notify the plaintiff or prosecutor of the arrest.

SEC. 22. A warrant shall be served by arresting the defendant and bringing him forthwith before the justice issuing the same; but if such justice, on the return thereof, shall be absent, or unable to hear or try the cause, or if it shall appear by the affidavit of the defendant, that such justice is a material witness in his behalf on the trial of the cause, the constable shall take the defendant before some other justice of the same township or city, if there be one therein qualified to try the same, and if not, then before some other justice in an adjoining city or township, who shall take cognizance of the cause, and proceed thereon as if the warrant had been issued by him.

SEC. 23. When the defendant shall be brought before the justice on a warrant, the justice shall then, or within three days thereafter, an adjournment, unless the parties agree to allow a longer time, or there be an adjournment, proceed to hear, try and determine the cause.

&c.

Bond to be filed before at'achment issues.

SEC. 24. In all cases of attachment, the plaintiff' shall, before the issuing of the attachment, file with the justice a bond to the defendant, in the penal sum of two hundred dollars, with sufficient sureties to be approved by the justice in writing thereon, signed by him, con